Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu [2017] 3 MLJ Langat and another case (Zainun Ali FCJ) 561 A Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case B FEDERAL COURT (PUTRAJAYA) — CIVIL APPEAL NO 01(f)-47–11 OF 2013 (B) AND REFERENCE NO 06–3–05 OF 2013 (B) ZULKEFLI CJ (MALAYA), HASAN LAH, ZAINUN ALI, ABU SAMAH NORDIN AND ZAHARAH IBRAHIM FCJJ 20 APRIL 2017 C Constitutional Law — Courts — Judicial power — Whether judicial power of courts resided in judiciary and no other — Article 121(1) of the Federal Constitution (‘the Constitution’) — Whether only judges appointed under D art 122B of the Constitution could exercise decision-making powers in superior courts — Whether exercise of judicial power by non-judges or non-judicial officers in superior courts was ultra vires art 121 of the Constitution Constitutional Law — Legislation — Validity of impugned legislation E — Section 40D of the Land Acquisition Act 1960 (‘the LAA’) — Whether s 40D ultra vires art 121(1) of the Constitution for allowing lay assessors sitting with the High Court judge to conclusively determine amount of compensation to be awarded in land reference — Whether judicial power to decide any dispute in land reference resided with judge alone — Whether s 40D(3) and proviso to s 49(1) of the LAA F not unconstitutional for declaring decision made on award of compensation in land reference non-appealable — Whether Legislature had power to enact laws limiting appeals by declaring finality of judgment/order — Whether proviso to s 49(1) of the LAA only barred appeals against issues of fact affecting quantum of compensation but not appeals on questions of law — Whether non-compliance G with mandatory provision of s 40C of the LAA rendered decision of land reference court invalid Land Law — Acquisition of land — Compensation — Land at time of H acquisition being developed into industrial area — Whether landowner had to be compensated for loss of business resulting from acquisition — Whether development/profit value of land at time of acquisition formed part of market value of land I The appellant owned a piece of land on part of which it commenced construction works for an industrial project (‘the project’) in January 1997. In April the following year, the land administrator (‘the LA’) notified the appellant that part of the land on which the construction works were ongoing would be compulsorily acquired for a highway project. Following an enquiry to 562 Malayan Law Journal [2017] 3 MLJ determine the compensation payable, the LA awarded the appellant A RM20,862,281.75 comprising RM17,627,400 for the value of the land and RM3,234,881.75 for the loss suffered from the termination of the project including monies spent on piling and building works, mobilisation and setting up of the construction site and advertisement and marketing fees. The LA did not consider the appellant’s ‘other claims’ for loss of business profits and other B development costs it had incurred. The appellant had entered into several sale and purchase agreements with third party buyers for the sale of factory units being built, collected deposits towards their purchase prices and incurred professional fees to third parties, compensation to contractors, management fees and other miscellaneous expenses. The LA referred the appellant’s C objection to his award to the High Court for its determination under ss 36(4) and 38 of the Land Acquisition Act 1960 (‘the LAA’). Pursuant to s 40D of the LAA, the High Court that heard the land reference comprised a High Court judge sitting with two assessors — a government valuer and a private valuer. After hearing the evidence and submissions, the court affirmed the LA’s award, D awarded an additional RM1,160,020 for severance and injurious affection caused by the diminution in value of the unacquired portion of the land affected by the acquisition and dismissed all the ‘other claims’ of the appellant which amounted to about RM18.2m. Contrary to s 40C of the LAA, no opinion in writing was given by either of the assessors in respect of the award. E The judge also did not give any reason for the dismissal of the appellant’s ‘other claims’. The Court of Appeal (‘the COA’) dismissed the appellant’s appeal against the decision of the land reference court holding that the court had considered, but rejected, the appellant’s ‘other claims’ and that the appellant’s appeal was, in any event, barred by s 40D(3) and the proviso to s 49(1) of the F LAA. Section 40D(3) was a finality clause that barred any appeal against a decision made under s 40D(1) and (2) while the proviso to s 49(1) stated that a decision against an award of compensation was non-appealable. The Federal Court granted the appellant leave to appeal against the COA’s decision on the following questions of law: (a) whether s 40D(3) and the proviso to s 49(1) of G the LAA extinguished a right of appeal to the COA against a land reference decision concerning compensation on a question of law; (b) whether in view of art 121 of the Federal Constitution (‘the Constitution’), which contemplated judicial power being exercised by judges alone, s 40D was constitutionally invalid in allowing lay assessors, instead of the judge, to conclusively determine H the amount of compensation payable; (c) whether s 40D(3) and the proviso to s 49(1) of the LAA could bar an appeal where s 40C of the LAA had not been complied with and where the decision-making process prescribed in s 40D was constitutionally invalid; (d) whether the LA’s failure to consider the development or profit value of the acquired land, given that it was being I commercially developed for profit at the time of the acquisition, had breached the safeguard of ‘adequate compensation’ under art 13(2) of the Constitution; and (e) whether ss 40A, 40B, 40C, 40D and the amendment to the proviso to s 49(1) of the LAA — all of which came into effect on 1 March 1998 — applied Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu [2017] 3 MLJ Langat and another case (Zainun Ali FCJ) 563 A to land that had been compulsorily acquired before that date. Jointly with the instant appeal, the Federal Court also heard two constitutional questions referred to it by the COA after the latter had stayed an appeal by the applicants herein disputing the LA’s award of compensation on a land acquisition. The two constitutional questions similarly challenged the constitutionality of B s 40D and the proviso to s 49(1) of the LAA in view of arts 121 and 13 of the Constitution. It was agreed that the decision in the appeal would bind the parties in the reference. The appellant’s complaint regarding s 40D was that pursuant to art 121(1) of the Constitution judicial power to decide a dispute in the superior courts resided with the courts and was exercisable only by judges C appointed under s 122B of the Constitution, but s 40D(1) allowed two lay assessors, and not the judge with whom they sat, to conclusively determine the amount of compensation in a land reference matter. Section 40D(2) provided that where the assessors disagreed on the amount of compensation, the judge could only concur with either one of them and the decision of the assessor with D whom the judge had concurred would prevail. Section 40D(3) declared any decision made under s 40D(1) and (2) to be final and non-appealable. This was fortified by the proviso to s 49(1) of the LAA which declared that the decision of the land reference court on an award of compensation was non-appealable. The appellant contended that based on the principle of ‘equivalence’ and the E safeguard of ‘adequate compensation’ under art 13(2) of the Constitution, it should be compensated for its loss of business profits resulting from the acquisition; that the ‘market value’ of the land should not be limited to comparable prices at which other lands in the vicinity had been sold but should also include the development/profit value of the land to the appellant at the F time of the acquisition. Held, allowing the appeal, declaring s 40D of the LAA to be unconstitutional with prospective effect and remitting the case back to the High Court for re-determination of issues subject to the following orders: that, by s 40A of the G LAA, the objection against the LA’s award be heard before a single judge assisted by two assessors; that pursuant to s 40C of the LAA, the assessors, after duly considering all heads of compensation claimed by the appellant, give their opinions in writing as to the appropriate amount of compensation to be awarded; the opinions of the assessors be recorded by the judge who should H consider the assessors’ opinions before determining the amount of compensation to be awarded based on the principle of equivalence; the provisions of s 36(4) of the LAA to be given full effect in that the judge was not to be bound by the opinion of either assessor; if there was disagreement between the assessors, the judge could elect to consider which of the two I opinions in his view was appropriate in the circumstances of the case; if the judge disagreed with the opinions of both the assessors, he was at liberty to decide on a reasonable amount of compensation and give his reasons for so finding.